Informal Performance Warning – Sample Script

In this sample, the employee is a staff attorney whose management of casework has been poor. This initial performance warning conversation would typically be the first step in the progressive discipline process. If your staff member’s performance did not improve, this would be followed by a written performance warning and, lastly – if performance still did not reach the necessary level – firing.

As I mentioned in my e-mail about our agenda, I wanted to talk about your performance lately.

To be frank, your performance has fallen short of what I need from you. I have concerns in two big areas: the quality of your written work, and your interactions with our activists.

In terms of written work, I’ve been having to re-write significant portions of your draft filings in order to get them to where they meet our standards. For instance, on last week’s reply to the motion to dismiss, your summary of the argument section was at least a page too long and didn’t mention of one of our three major points. In addition, the transitions from one section of the argument to another were abrupt and disjointed, and in at least two places your parentheticals summarizing holdings were inaccurate.

So that’s the written work piece. On the activist front, we continue to hear feedback that you aren’t responsive enough when they try to get in touch with you.

I’d love to get your perspective on what’s causing these problems. On the writing, do you have any sense of why the product hasn’t been strong?

[We assume here that the attorney says that she has been too busy to devote enough time to ensuring a quality product.]

I know what you mean about writing under pressure and without enough time. Unfortunately, though, I don’t think the workload is going to get any lighter, and others on staff are handling comparable amounts of work. I could see, though, how better planning in advance might lead to a better product. Should we talk about how you might do that, working backwards from the deadline to ensure you don’t hit a time crunch?

[The manager and staff member agree that better advance planning would indeed help and that the staff member will send the manager a quick e-mail after each new piece of writing is assigned in which she lays out her timeline for producing a draft.]

So better planning may help, and I’m happy to be a resource by looking over your initial timeline. Over time, though, you’ll need to be able to do that independently because I wouldn’t be able to supervise everyone that closely in the long run.

Stepping back from this, I want to be clear about my expectations, and I also want to make sure we’re both on the same page about what needs to happen and what the potential consequences are.

Going forward, I expect you to begin producing drafts of written documents that are ready to file with minimal editing by me – and by that I mean 30 minutes or less. Among other things, the arguments need to be clear, concise, and well supported, and flow smoothly from one point to another.

In terms of activist relations, as you know, we promise a response time of no longer than two days. I know that can be hard when you have a lot of work on your plate, but again, it’s a bar we’re committed to meeting and we can’t have you continue to miss it.

In the short term, I want you to re-draft the brief you sent me last night and have a stronger version to me by tomorrow end-of-day. I’m also going to put it on my calendar for us to check in on your performance in three weeks.

Assuming it improves and you sustain the higher level, then we’ll just roll forward. If it doesn’t, though, then I’m going to have to put you on a formal written improvement plan.

A formal written plan lays out areas for improvement and a timeline – and as with this discussion, if you improve and sustain that level, things go forward. If you don’t improve, though, then at that point we would have to dismiss you. So my concerns here are serious – I think you have a great deal of potential, but I need you to be performing at a higher level. Given our workload, I need someone in your position who can create strong written documents and respond to activists promptly and reliably, and if you can’t meet that bar we would have to find someone who can.

Do you have any questions about how we’re moving forward?